RECONSIDERATION DECISION
Before: Harry Adamidis
Licence Appeal Tribunal File Number: 21-013958/AABS
Case Name: Anna Ambrosini v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Joshua Gautreau, Counsel
For the Respondent: Yann Grand - Clement, Counsel
OVERVIEW
1On May 3, 2024. the respondent requested reconsideration of the Tribunal’s decision dated April 12, 2024 (“decision”).
2In the decision, I found that the applicant was entitled to a treatment plan for physiotherapy and interest. I also found that the applicant was not entitled to a neurological assessment, a chronic pain assessment, a second treatment plan for physiotherapy and assistive devices, and an additional treatment plan for assistive devices.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The respondent submits that, pursuant to Rule 18.2(b), I made an error of fact such that I would likely not have found that the applicant was entitled to a treatment plan for physiotherapy. The applicant submits that the respondent has not identified any error of fact.
5The respondent seeks a determination that the applicant is not entitled to physiotherapy, nor any other future treatment or interest.
RESULT
6The request for reconsideration is dismissed.
ANALYSIS
7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
8I find that the respondent has not established grounds for reconsideration.
9According to the respondent, I failed to comment on the number of sessions being proposed in the treatment plan despite the respondent providing submissions that the proposed 108 sessions of physiotherapy are excessive.
10In paragraph 22 of the decision, I set out the respondent’s position regarding the number of physiotherapy sessions in this treatment plan as follows:
The respondent submits that the applicant has not pointed to any medical evidence that justifies physiotherapy, let alone the large number of sessions of physiotherapy in this treatment plan. According to the respondent, the applicant has not met her burden of establishing that physiotherapy is reasonable and necessary.
11In paragraphs 23 to 27, I set out the applicant’s submissions and assessed the medical evidence as follows:
The applicant cites the Chronic Pain Assessment Report of Dr. Karmy, dated March 8, 2021 which recommends physiotherapy. She also cites the letter by Dr. Karen Dobkin, her family doctor, dated October 3, 2021 which specifically recommends this treatment plan for physiotherapy. Additionally, I note that the respondent previously took me to the above mentioned reports of Dr. Basile, dated December 10, 2019, and Dr. Jha, dated March 29, 2021. Both neurological reports recommend physiotherapy.
Dr. Soric physically examined the applicant and determined that her pain was non-radicular. This is a markedly different finding from the two neurologists, Dr. Basile and Dr. Jha, who identified radicular pain.
Dr. Soric’s report shows that he was aware of the radicular pain diagnosis by the two neurologists. The report also notes a third radicular pain diagnosis attributed to the accident in a Progress Note by Dr. Dulara Hussain, neurologist, dated May 28, 2020. Dr. Soric disagrees with these findings but does not explain why. He merely says that the new information “does not compel me to change my opinion regarding her musculoskeletal injuries.”
Neurologists have specialized training and expertise to diagnose pain caused by nerve damage such as radicular pain. The consensus among three neurologists is that the applicant sustained radicular pain as a result of the accident. Dr. Soric disagrees, but he provides no insight into why he has a different opinion. As such, I give more weight to the radicular pain findings of the three neurologists because of their expertise and specialized testing, such as Dr. Basile’s electrodiagnostic study that found radiculopathy in the applicant’s neck, are more persuasive than Dr. Soric’s unexplained differing opinion.
As such, I further find that the recommendations for physiotherapy by Dr. Basile and Dr. Jha establish the applicant’s entitlement to the treatment plan for physiotherapy in issue 4.
12As set out in the decision, and quoted above, I gave weight to the opinions of various doctors, including the applicant’s family doctor who recommended the treatment plan for 108 sessions of physiotherapy.
13Consequently, I considered the respondent’s position regarding the number of treatments and determined that the evidence supported a finding that the applicant is entitled to 108 sessions of treatment. In my view, the decision sufficiently addressed whether 108 treatment sessions are reasonable and necessary. As well, I agree with the applicant. The respondent has not identified an error of fact in the decision.
14The respondent argues that I did not explain why 108 sessions of physiotherapy are reasonable and necessary over the 36 physiotherapy sessions proposed in a different treatment plan that was also in dispute in the application.
15I addressed the other treatment plan for physiotherapy and the total quantity of physiotherapy in dispute in paragraph 28 as follows:
Issue 3 is a treatment plan for physiotherapy and assistive devices. The applicant makes no submissions on why two treatment plans for physiotherapy are reasonable and necessary. The applicant also makes no submissions on why she is entitled to the assistive devices. As such, the applicant has provided no basis for me to conclude that this treatment plan is reasonable and necessary.
16I considered both treatment plans for physiotherapy and found there was an insufficient basis to justify entitlement to both treatment plans. The respondent disagrees with my approach. However, this does not mean that the amount of physiotherapy in both plans was not meaningfully considered. Moreover, the respondent’s submissions do not raise an error of fact.
17The respondent further submits that there is no evidence that recommends over 100 sessions of physiotherapy. In its view, the applicant did not justify why so many sessions are required and my decision fails to address this point.
18The respondent’s submission is incorrect. As noted above in paragraph 12, the applicant’s family doctor wrote a letter that recommended the treatment plan for 108 physiotherapy treatments. As such, there is medical evidence supporting the treatment plan. Again, this is not an error of fact.
19The respondent has asked for an order that states the applicant is not entitled to any future treatment because the accident was over five years ago and the applicant has not been found to be catastrophically impaired. This request is beyond the scope of a reconsideration request, and therefore, cannot be considered.
CONCLUSION & ORDER
20The respondent’s request for reconsideration is dismissed.
Harry Adamidis
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 19, 2024